Qld Supreme Court confirms finding of negligence requires proof Qld Supreme Court confirms finding of negligence requires proof

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Qld Supreme Court confirms finding of negligence requires proof

18 November 2019 | Health Law

The Cairns Registry of the Queensland Supreme Court has confirmed that an unfortunate outcome after admission to Hospital does not, without evidence of breach of a duty of care and proof of causation, amount to medical negligence.

In Issue

The issue in this case was whether the Cairns Base Hospital (Hospital) breached its duty of care by providing thrombolysis for treatment of an ischaemic stroke, which the plaintiff alleged resulted in a second stroke that left her severely, and permanently, disabled.

The Background

The 84 year plaintiff, Terezie Sochorova, sought damages for personal injury resulting from a stroke that left her permanently disabled and requiring full-time care in a nursing home. The plaintiff (who was represented by her brother, Joseph Moder, at trial) alleged that the second stroke was caused by thrombolysis administered following the first stroke, and that the procedure was either contraindicated or had not been properly explained and the risk warned of.

The plaintiff did not call any medical expert, instead relying on the lay testimony of Mr Moder. Three doctors were called by the defendants; two were treating physicians and the third, Dr Brown, was an expert neurologist who was engaged specifically for the purpose of providing an expert opinion.

The Decision at Trial

The court accepted the defendant’s evidence that the first stroke was a severe Ischaemic stroke, which is associated with deprivation of blood flow to an area of the brain. The court was satisfied that proper professional inquiries (including a CT scan and blood tests) had been carried out, and had established that it was safe to administer thrombolysis, and that appropriate consultation with the plaintiff and Mr Moder had taken place before the procedure was commenced

The court also accepted the defendant’s expert’s evidence that the progression of the plaintiff’s second stroke (or “shower of strokes” as described by the defendant’s expert) resulted from the plaintiff’s stroke symptoms progressing despite, not because of, the administration of thrombolysis.

In dismissing the plaintiff’s case (delivered ex tempore on the fifth day of trial), Henry J acknowledged the sad circumstances of the case and said:

“Mr Moder and his sister were reunited after many years of separation in the wake of World War II. They were committed to keeping each other company in the latter stage of their lives. He is clearly devoted to her and obviously aggrieved by her decline, just as she would be. Living in a nursing home in a permanently and severely incapacitated state is an awful way to live out one’s twilight years.

It is difficult to avoid the impression that sad, emotionally stressful context has played some contributing role in the pursuit of someone to blame. It is a pursuit seemingly driven by suspicion and misunderstanding, and an apparently dogged unwillingness to accept by far the most obvious explanation for Ms Sochorova’s fate. The explanation is that an 84 year old lady in poor health, and with a history of strokes, suffered a stroke and, within five hours, despite competent emergency care, suffered a further and more severe stroke, with permanent disabling consequences.”

Implications for you

This case is a reminder for potential plaintiffs that not all unfortunate outcomes in a healthcare setting are due to negligence and that breach of duty and causation must be proven in order for liability to arise.

Sochorova v Durairaj & Anor [2019] QSC 251

Emma Topen

Emma Topen

Senior Associate